Supreme Court Update: Order Lists-January 11, 14, and 18, 2013

February 18, 2013 Supreme Court Update

Greetings, Court fans!

The Court has been quiet the past few weeks, so it's the perfect time for us to catch up on cert grants, starting with a pair of preemption questions:

The Federal Aviation Administration Authorization Act of 1994 contains an express preemption clause at 49 U.S.C. § 14501(c)(1), providing that "a State [or] political subdivision … may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier ... with respect to the transportation of property." The Act also contains an exception providing that the express preemption clause "shall not restrict the safety regulatory authority of a State with respect to motor vehicles." American Trucking Ass'n v. Los Angeles (11-798) asks: (1) "Whether an unexpressed ‘market participant' exception exists in Section 14501(c)(1) and permits a municipal governmental entity to take action that conflicts with the express preemption clause, occurs in a market in which the municipal entity does not participate, and is unconnected with any interest in the efficient procurement of services; and (2) "Whether permitting a municipal governmental entity to bar federally licensed motor carriers from access to a port operates as a partial suspension of the motor carriers' federal registration, in violation of Castle v. Hayes Freight Lines, Inc., 348 U.S. 61 (1954)."

5 U.S.C. § 8705(a) provides that the proceeds from a Federal Employees Group Life Insurance (FEGLI) policy should be paid to the beneficiaries properly designated by the employee, and if none, then to the widow of the employee. Hillman v. Maretta (11-1221) asks "whether 5 U.S.C. § 8705(a), any other provision of the Federal Employees Group Life Insurance Act of 1954 (FEGLIA) or any regulation promulgated thereunder preempts a state domestic relations equitable remedy which creates a cause of action against the recipient of FEGLI insurance proceeds after they have been distributed."

AID v. Alliance for Open Society Int'l (12-10) asks "Whether the United States Leadership Against HIV/ AIDS, Tuberculosis, and Malaria Act of 2003, 22 U.S.C. 7631(f), which requires an organization to have a policy explicitly opposing prostitution and sex trafficking in order to receive federal funding to provide HIV and AIDS programs overseas, violates the First Amendment."

Salinas v. Texas (12-246) asks "Whether or under what circumstances the Fifth Amendment's Self-Incrimination Clause protects a defendant's refusal to answer law enforcement questioning before he has been arrested or read his Miranda rights."

Sekhar v. United States (12-357) asks "Whether the ‘recommendation' of an attorney, who is a salaried employee of a governmental agency, in a single instance, is intangible property that can be the subject of an extortion attempt under 18 U.S.C. §1951(a) (the Hobbs Act) and 18 U.S.C. §875(d)."

United States v. Kebodeaux (12-418) concerns the application of the Sex Offender Registration and Notification Act (SORNA) to a respondent who was convicted of a military sex offense before SORNA was enacted. The case asks: (1) "Whether the court of appeals erred in conducting its constitutional analysis on the premise that respondent was not under a federal registration obligation until SORNA was enacted, when pre-SORNA federal law obligated him to register as a sex offender;" and (2) "Whether the court of appeals erred in holding that Congress lacks the Article I authority to provide for criminal penalties under 18 U.S.C. 2250(a)(2)(A), as applied to a person who was convicted of a sex offense under federal law and completed his criminal sentence before SORNA was enacted."

Chadbourne & Parke LLP v. Troice (12-79), Willis of Colorado, Inc. v. Troice (12-86), Proskauer Rose LLP v. Troice (12-88) were consolidated for argument on this question: "Does the Securities Litigation Uniform Standards Act of 1998 (‘SLUSA'), 15 U.S.C. §§ 77p(b), 78bb(f)(1), prohibit private class actions based on state law only where the alleged purchase or sale of a covered security is ‘more than tangentially related' to the ‘heart, crux or gravamen' of the alleged fraud?"

University of Texas Southwestern Med. v. Nassar (12-484) asks "Whether Title VII's retaliation provision and similarly worded statutes require a plaintiff to prove but-for causation (i.e., that an employer would not have taken an adverse employment action but for an improper motive), or instead require only proof that the employer had a mixed motive (i.e., that an improper motive was one of multiple reasons for the employment action)."

Metrish v. Lancaster (12-547) asks: (1) "Whether the Michigan Supreme Court's recognition that a state statute abolished the long-maligned diminished-capacity defense was an ‘unexpected and indefensible' change in a common-law doctrine of criminal law under [the] Court's retroactivity jurisprudence;" and (2) "Whether the Michigan Court of Appeals' retroactive application of the Michigan Supreme Court's decision was ‘so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement' so as to justify habeas relief."

Bond v. United States (12-158) requires the Court to revisit a case it first heard two terms ago, of the woman who was prosecuted under the Chemical Weapons Convention Implementation Act, 18 U.S.C. § 229, for causing her husband's mistress to touch certain caustic chemicals, resulting in minor injuries. The first time around, the Court held that Bond had standing to argue that the statute violated the Tenth Amendment as applied to her by regulating matters of purely local concern. On remand, the Third Circuit held that Bond's constitutional challenge was nevertheless a nonstarter due to language in Missouri v. Holland (1920), which states that "if [a] treaty is valid there can be no dispute about the validity of the statute [implementing that treaty] under Article 1, Section 8, as a necessary and proper means to execute the powers of the Government." Now before the Court again, the case asks: (1) "Do the Constitution's structural limits on federal authority impose any constraints on the scope of Congress' authority to enact legislation to implement a valid treaty, at least in circumstances where the federal statute, as applied, goes far beyond the scope of the treaty, intrudes on traditional state prerogatives, and is concededly unnecessary to satisfy the government's treaty obligations;" and (2) "Can the provisions of the Chemical Weapons Convention Implementation Act, codified at 18 U.S.C. § 229, be interpreted not to reach ordinary poisoning cases, which have been adequately handled by state and local authorities since the Framing, in order to avoid the difficult constitutional questions involving the scope of and continuing vitality of this Court's decision in Missouri v. Holland?"

The Court has also asked for the SG's view on the following cert petitions:

Section 302 of the Labor-Management Relations Act makes it criminal for an employer "to pay, lend, or deliver . . . any money or other thing of value" to a labor union that seeks to represent its employees, and prohibits the labor union from receiving the same. Unite Here Local 355 v. Mulhall (12-99) and Mulhall v. Unite Here Local 355 (12-312) would ask, "Whether an employer and union may violate § 302 by entering into an agreement under which the employer exercises its freedom of speech by promising to remain neutral to union organizing, its property rights by granting union representatives limited access to the employer's property and employees, and its freedom of contract by obtaining the union's promise to forego its rights to picket, boycott, or otherwise put pressure on the employer's business?"

Section 524(g) of the Bankruptcy Code authorizes courts to channel asbestos related claims into a trust that is funded by the debtor and specified third parties, such as the debtor's corporate parent, who in turn receive an injunction that protects them from the asbestos related claims. In Pfizer Inc. v. Law Offices of Peter G. Angelos (12-300), the Second Circuit held that § 524(g)(4)(A)(ii) enjoins claims against a third party only where the third party's relationship to the debtor – such as ownership – is a legal element of the claim, and does not enjoin claims where that relationship is an undisputed factual predicate of the claim. If granted, the petition would ask: "Whether the Second Circuit erred by failing to apply as written a federal statute, 11 U.S.C. § 524(g)(4)(A)(ii), by limiting its scope in a manner that is contrary to its plain terms and that frustrates the congressional purposes of the statute."

We'll be back when the Court picks back up again, which we expect will be soon. Until then, as always, thanks for reading!

Kim, Jenny & Julie

From the Appellate and Complex Legal Issues Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart or any other member of the Practice Group at 203-498-4400